ECtHR: Prohibition to publish a photomontage does not violate the right to freedom of exprssion

by Sofie Luise BurgerOn 15 March 2016, the European Court of Human Rights (ECtHR) declared an application of the German newspaper Handelsblatt inadmissible (Application no. 52205/11). The paper had been claiming a violation of art. 10 European Convention for Human Rights (ECHR) for having been forbidden to publish a photomontage.

ECtHR: Prohibition to publish a photomontage does not violate the right to freedom of exprssion

In their edition of September 2000, the paper had published an article about the CEO of a German telecom company, in which the CEO was critisised for his management style and the following consequences for his company. The article was illustrated with a photomontage showing the crumbling logo of the company with a person with the CEO’s face sitting on top of it. The picture of this person was put together using the body of a model in a sitting position and a photograph of the CEO’s head. To fit the body and the head together, the photograph had been vertically stretched and horizontally shrunk.

The CEO applied for an interim injunction to forbid any further publication of the photomontage. His main reproach was that the distortion of his head and the fact that this distorted head had been put on a different body would damage his reputation, mostly for the fact that his head looked more corpulent in the montage than it actually was. The newspaper, however, claimed that the photomontage was a satirical illustration of the article, thus reinforcing the criticism expressed in the report. Claiming the picture was satire, the German Federal Court of Justice Bundesgerichtshof overturned the previous instances’ judgements.

The German Federal Constitutional Court Bundesverfassungsgericht, however, repealed the Federal Court of Justice’s decision and referred the case back to the Federal Court of Justice. It held that personality rights generally include protection from any publication of technically manipulated photographs. In the context of satirical illustrations, it had to be established whether the manipulation had its own satirical nature or was technically necessary for the composition of the illustration, or whether the alterations were negligible. Applying these principles to the photomontage in question, the Court found that the newspaper had used a photograph of the CEO to depict reality and make the person identifiable, and that the illustration of the person had no satirical value in itself.

After the Federal Court of Justice and the Federal Constitutional Court had been appealed unsuccessfully, and the legal battle already continuing for 11 years, the newspaper finally appealed to the ECtHR in 2011, claiming that the injunction preventing any further publication of the photomontage violated its journalistic freedom enshrined in art. 10 ECHR.

Now, 16 years after the incident, the ECtHR noted that the injunction constituted an interference with the applicant’s right to freedom of expression. The Court had to examine, however, whether a fair balance had been struck between the newspaper’s right to freedom of expression and the opposing CEO’s right to protection of reputation as guaranteed by Art. 8 of the Convention (Right to respect for private and family life).

According to the ECtHR, relevant criteria in the context of balancing the competing rights are, among others, the contribution to a debate of public interest, the degree of the damage to the reputation of the person affected, the subject of the news report and the content, form and consequences of the publication. Where it examines an application lodged under article 10, the Court will also examine the way in which the information was obtained and its veracity, and the severity of the penalty imposed on the journalists or publishers. Considering the present case, the Court noted that the management style of the CEO of a company that had a leading share of the national market was indeed a matter of public interest. Regarding the damage to his reputation, the Court noted that the used photograph of the CEO only consisted of his head, thus not revealing any private details and that the picture had been retrieved from an image database of a German news agency.

As far as the content and form of the publication were concerned, the Court stated that, even though the article itself had satirical value, and the impugned photomontage conveyed this satire, the distortion of the CEO’s head did not point towards the satirical message of the photomontage. Instead, the newspaper had used a photograph of the CEO to depict reality and make the person identifiable. Thus, the manipulation was a false representation of the plaintiff.

As a consequence, the Court concluded that the photomontage was a violation of the plaintiff’s right to personal honour and reputation. Therefore, the interim injunction forbidding the newspaper to publish the picture was not a violation of the newspaper’s right to freedom of expression according to art. 10 ECHR.

Sofie Luise Burger is a research associate at the Institute of European Media Law (EMR) in Saarbrucken/ Brussels.

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The Court’s findings (Application no. 52205/11) are available in English here.

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